## Facts

- Vimeo operated a user-generated video-sharing platform and required users, via Terms of Service, not to upload infringing content.
- Vimeo screened for film/video piracy but generally did not screen for infringing sound recordings unless a video was flagged; staff reviewed flagged videos and could remove them.
- Record companies and music publishers alleged Vimeo was liable for infringement based on 199 videos containing copyrighted sound recordings.
- Vimeo asserted the DMCA § 512(c) safe harbor, which can limit a qualifying service provider’s monetary liability for user-directed storage of infringing material if statutory conditions are met.
- The district court granted partial summary judgment to plaintiffs as to 55 videos containing pre-1972 sound recordings on the theory that § 512(c) does not apply to such works governed by state law.
- The district court denied Vimeo summary judgment as to other videos, finding triable issues whether Vimeo had actual or “red flag” knowledge where employees viewed or interacted with videos.
- The district court rejected plaintiffs’ argument that employee comments and conduct showed willful blindness that would defeat safe-harbor protection.
- The parties filed cross-appeals, and the district court certified DMCA interpretive questions for interlocutory review.

## Issues

1. Whether DMCA § 512(c) safe-harbor protection applies to infringement claims involving pre-1972 sound recordings governed by state law.
2. After a service provider makes a prima facie showing of § 512(c) eligibility, which party bears the burden to prove or negate actual knowledge, “red flag” knowledge, or willful blindness that would remove safe-harbor protection.
3. Whether employee viewing or interaction with videos containing recognizable music can, without more, establish “red flag” knowledge that infringement was objectively obvious.
4. Whether generalized encouragement or platform conduct can constitute willful blindness sufficient to substitute for actual knowledge and defeat the § 512(c) safe harbor.

## Decision

- The Second Circuit held that § 512(c) applies to pre-1972 sound recordings and can bar monetary relief under state law as well as federal law when statutory conditions are satisfied.
- The court clarified that, once a service provider shows prima facie eligibility for § 512(c), the plaintiff bears the burden to show disqualifying facts, including actual knowledge, red-flag knowledge, or willful blindness.
- The court held the district court used an overly permissive approach to inferring “red flag” knowledge from employee viewing or interaction and required reconsideration under the correct standard.
- The court rejected plaintiffs’ willful-blindness theory on the record presented, concluding the evidence did not show deliberate efforts to avoid learning of specific infringements.
- Disposition: affirmed in part, vacated in part, and remanded, including vacatur of the ruling categorically excluding pre-1972 recordings from safe-harbor coverage and vacatur of parts of the ruling denying Vimeo summary judgment based on “red flag” knowledge.

## Legal Principles

- DMCA § 512(c) limits monetary remedies for qualifying service providers for user-directed storage of infringing material and can apply even where the underlying copyright claim arises under state law for pre-1972 sound recordings.
- A service provider bears the initial burden to show eligibility for § 512(c) (including that the material was stored at a user’s direction and that statutory policy/notice-and-takedown requirements are met).
- After a prima facie showing of eligibility, the plaintiff bears the burden to prove facts removing the provider from the safe harbor, including actual knowledge, “red flag” knowledge, or willful blindness.
- “Red flag” knowledge requires awareness of facts making infringement objectively obvious; recognition of a song or employee interaction with content, without evidence of unauthorized use (and without excluding fair use), is insufficient by itself.
- Willful blindness may substitute for actual knowledge only where the provider deliberately avoids confirming specific, apparent infringements; generalized awareness that infringement occurs or isolated employee encouragement is not enough.

## Conclusion

The Second Circuit extended § 512(c) safe-harbor protection to pre-1972 sound recordings, placed the burden on plaintiffs to prove disqualifying knowledge once a provider shows prima facie eligibility, tightened the “red flag” standard to objectively obvious infringement, and held that the evidence did not establish willful blindness, requiring remand for reassessment under these standards.


Capitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78 (2d Cir. 2016)